Adickes v. Philips Healthcare

• Decision Date: 17 January 2018
• Docket Number: Appellate Case No. 2016-000514,Unpublished Opinion No. 2018-UP-027
• Parties: Barry Adickes, Claimant, Respondent, v. Philips Healthcare, Employer, and Fidelity and Guarantee Insurance Company, Carrier, Appellants.
• Court: South Carolina Court of Appeals

Barry Adickes, Claimant, Respondent, v. Philips Healthcare, Employer,and Fidelity and Guarantee Insurance Company, Carrier, Appellants.

Appellate Case No. 2016-000514

Unpublished Opinion No. 2018-UP-027

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard November 9, 2017

January 17, 2018

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From the Workers' Compensation Commission

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Brooke Ann Payne and Ryan Daniel Oxford, both of Lueder, Larkin & Hunter, of Mount Pleasant, for Appellants.

William L. Smith, II, of Chappell Smith & Arden, and Blake A. Hewitt, of Bluestein Nichols Thompson & Delgado, LLC, both of Columbia, for Respondent.

PER CURIAM: In this workers' compensation case, Philips Healthcare (Employer) and Fidelity and Guarantee Insurance Company (collectively, Appellants) appeal the order of the Appellate Panel of the Workers' Compensation Commission (Appellate Panel) affirming the single commissioner's award of benefits to Barry Adickes. On appeal, Appellants argue the Appellate Panel erred by (1) finding Adickes to be at maximum medical improvement (MMI) for all of his work-related injuries, (2) determining Adickes was entitled to permanent partial disability (PPD) benefits due to loss of earning capacity, and (3) inaccurately awarding PPD wage loss benefits pursuant to section 42-9-20 of the South Carolina Code (2015). We affirm in part, reverse in part, and remand.

1. We find substantial evidence in the record supports the Appellate Panel's finding Adickes was at MMI for his right shoulder.¹ See Fishburne v. ATI Sys. Int'l, 384 S.C. 76, 85, 681 S.E.2d 595, 599 (Ct. App. 2009) ("The Appellate Panel's decision must be affirmed if supported by substantial evidence in the record."). Dr. Jerry Barron rated Adickes's right shoulder as having a fifteen-percent "permanent impairment" and noted, "It is further my opinion that he will most probably eventually require additional surgery to the right shoulder based on the MRI findings as well as ongoing symptoms. It is reasonable for Mr. Adickes to try to avoid surgery as long as possible." Appellants correctly note Dr. Barron did not specifically state Adickes was at MMI, but we find he meant exactly that by referring to the fifteen-percent impairment as "permanent." The fact Dr. Barron recommended additional treatment—surgery or otherwise—does not negate his opinion Adickes's impairment was permanent. Curiel v. Envtl. Mgmt. Servs. (MS), 376 S.C. 23, 29, 655 S.E.2d 482, 485 (2007) ("The term '[MMI]' means a person has reached such a plateau that, in the physician's opinion, no further medical care or treatment will lessen the period of impairment."). Importantly, Appellants did not provide a contrary medical opinion to the Appellate Panel, and Appellants had the right to seek such a contrary opinion. See S.C. Code Ann. Regs. 67-509(A) (2012) ("The employer's representative chooses an authorized health care provider and pays for authorized treatment.").

2. We find substantial evidence in the record supports the Appellate Panel's finding Adickes's injuries caused a loss of earning capacity. See Fishburne, 384 S.C. at 85, 681 S.E.2d at 599 ("The Appellate Panel's decision must be affirmed if supported by substantial evidence in the record."). Both the single commissionerand Appellate Panel relied on Dr. L. Randolph Waid's neuropsychological evaluation, Dr. Howard Mandell's deposition testimony, and Joel Leonard's vocational evaluation and related deposition. Dr. Waid's evaluation noted Adickes likely experiences "executive dysfunction" that "potentially affect[s] both cognitive and emotional domains." He further opined Adickes "experiences episodic forgetfulness due to the interfering effects of attention/executive difficulties and headaches."

Dr. Mandell was Adickes's treating neurologist for more than three years following the accident. He testified directly regarding Adickes's injuries and consequences thereof, opining the effects of Adickes's injuries were likely "barriers" to his employment potential. Dr. Mandell explained Adickes's struggle with concentration and focus were "clearcut[,] persistent problem[s] that [weren't] going away" and noted, "I think this is the way he is, and [these are] the leftovers that happened from the traumatic brain injury." Dr. Mandell also endorsed Dr. John Welshofer's fifteen-percent permanent impairment rating of Adickes's brain for continuous postconcussive symptomatology and headaches.

Leonard's vocational evaluation² opined Adickes's employability was "most consistent" with Profile B. Leonard explained, "Within the parameters of Profile B, [Adickes's] current weekly wage (estimated at $1,057.69 [or $55,000 annually]) would be considered a reasonable and proper representation of his likely earning capacity subsequent to the March 2011 accident." During Leonard's deposition, he reviewed additional information that was unavailable to him initially, including an extensive review of Adickes's work history with Employer, Dr. Mandell's deposition testimony, and Dr. Waid's neuropsychological evaluation. Despite the additional information, Leonard maintained his opinion that Profile B best described Adickes's employment potential. He explained the evidence in the record supported Adickes's wage loss was "due to some cognitive dysfunction."

We find Adickes's PPD and resulting wage loss is supported by competent expert opinion, including Dr. Welshofer's permanent impairment rating, Dr. Mandell's deposition testimony, Dr. Waid's neuropsychological evaluation, and Leonard's vocational evaluation.

3. We find the Appellate Panel erred in its interpretation and application of section 42-9-20 of the South Carolina Code (2015). See State Acc. Fund v. S.C. Second Injury Fund, 409 S.C. 240, 245, 762 S.E.2d 19, 21 (2014) ("Although the [c]ourt may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact, the [c]ourt may reverse a decision of the [Appellate Panel] if it is affected by an error of law . . . ."). Accordingly, we reverse Adickes's award of PPD benefits and remand to the Appellate Panel for a new calculation.

The applicable portion of section 42-9-20 reads: "In no case shall the period covered by such compensation be greater than three hundred forty weeks from the date of injury." We find this is a limiting clause that restricts the timeframe and amount of coverage and should be strictly interpreted. See Lewis v. L.B. Dynasty, 411 S.C. 637, 641, 770 S.E.2d 393, 395 (2015) ("We...